By Eric Peters, Automotive Columnist

Next time you get pulled over by a cop – or stopped at random in a “sobriety checkpoint” — you might want to remember the following laugh line: It’s called the Fifth Amendment to the Bill of Rights, which reads, in part, that “No person… shall be compelled in any criminal case to be a witness against himself.”

Ho ho ho!

It’s a laugh line, because, like, so many of the other amendments to the Bill of Rights, pleading the Fifth — that is, declining to assist the authorities in your own prosecution — is a sick joke.

Or like them, is about to become one.

Because cops may soon have the legal authority to forcibly extract blood from you in order to use that blood as evidence against you in DWI cases — which are criminal proceedings.

Refuse to take a Breathalyzer (for whatever reason) or perform the trained monkey act by the side of the road (perhaps because you’re not coordinated even if completely sober and probably a lot less so under pressure and in the glow of a policeman’s flashlight) and you could find yourself thrown down across the hood of a squad car while some cop jams your body with needles in order to get the blood that will then be used as evidence against you at your trail.

Oh, but they will be Trained!

Well, sort of, kinda. A “compressed” version of the same program taken by blood techs — phlebotomists, in medical jargon — will be the curriculum vitae of these state-sanctioned thugs.

Feel better now?

It’s all part of a new federal program — yes, another one — the stated purpose of which will be to determine how effective a “tool” such tactics would be in the ongoing (and endless) crusade against drunk driving. If it is deemed “effective” (do you doubt it will be?) then it will become as commonly practiced across this formerly free land as all the other outrages against civility and basic legal due process we have already assented to.

After all, if you’re not driving drunk, what have you got to be worried about? Those nice cops would never use force against an innocent person! They will be trained! The lab people don’t make mistakes, not even every now and then.

And, of course — drunk driving is a bad thing!

It makes me shiver with dread to see just how close to the abyss we really are. The Masses — or a great part of them — have become sickeningly compliant authority worshippers who submit to anything demanded of them by the state. And who often bristle with righteous indignation when the occasional semi-sentient citizen dares to raise an objection.

No one sees — or would give a damn about it, if they did — the point. Which is that empowering cops to physically hold you down and draw blood from your body against your will — to be used as evidence against you in a criminal proceeding — is to rape the Fifth Amendment and thus, another basic and ancient tenet of the late great tradition we used to call the rule of law.

All in a good cause?

Only if you’re a fool — or the government, which knows what the real payoff here is.

“Getting dangerous drunks off the road” is no more the issue than the random stop and frisks we’re now routinely subjected to when traveling (and even when not) or the indefinite detentions of anyone the government wishes — with or without waterboardings — are about “fighting terror.”

The issue is teaching the people to Obey and Submit. To condition them to accept the idea that anything the government does, at any time and for whatever reason (or no reason at all) is acceptable — including the use of physical force against people even suspected of having committed some offense.

And if you’re not guilty of “drunk driving?”

Sorry about that, John Q. Be sure to hold that bandage against your elbow for at least the next 10 minutes to staunch the flow of blood.

Have a nice day.

As for due process: The Masses do not grasp the concept; they are too busy watching football — or keeping track of John and Kate plus Eight.

It’s what really matters these days.

• California Supreme Court: Breathalyzer Results Can Be Challenged
• Motorists Forced To Let Officers Draw Blood Samples At DUI Stops
• Mandatory In-Car Breathalyzers Coming?
• The Cash For Clunkers Program Throws A Rod
• Breath-Alcohol Analysis: How Reliable Is It?

Under the law, a suspected drunk driver can submit to either a blood test, which measures the amount of alcohol in the blood, or a breath test. Alcohol levels in a breath sample are converted mathematically to derive a blood-alcohol percentage. In California, a person is legally drunk when his or her blood-alcohol level is 0.08% or higher.

The standard formula for converting breath results to blood-alcohol levels is not accurate for everyone, however, and can vary depending on an individual’s medical condition, gender, temperature, the atmospheric pressure and the precision of the measuring device, the court said.

“The question is whether a defendant who has a blood-alcohol concentration of 0.08% or more measured by breath is entitled to rebut that presumption that he was under the influence” in certain cases, Justice Carol A. Corrigan wrote. The court’s answer was yes.

As the article explains, one of the reasons for the ruling was the potential for Breathalyzer readings that overstate the amount of alcohol in a person’s blood:

Even though experts say the standard ratio used to derive a blood-alcohol concentration from breath generally approximates or even underestimates the amount of alcohol the driver consumed, they also agree that Breathalyzer results may sometimes overestimate the amount of alcohol in the blood.

Thursday’s ruling permits defendants in some cases to challenge those results based on mathematical ratios.

“Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing,” Corrigan wrote.

Jamie L. Popper, the appellate defense lawyer in the case, had this to say:

“The situation currently is that juries are led to believe that when a person blows into the breath test, the blood-alcohol measure that breath test gives is a fact, when all a breath test is is a measure.”

For more on this topic, you can read our previous article on Breathalzyers:
It’s Just A Decimal Point: The Dirty Secret Behind Breathalyzers

And you can read the full Los Angeles Times article here.

• Breath-Alcohol Analysis: How Reliable Is It?
• It’s Just A Decimal Point: The Dirty Secret Behind Breathalyzers
• A Blueprint For Reasonable Drunk Driving Laws
• Motorists Forced To Let Officers Draw Blood Samples At DUI Stops
• Mandatory In-Car Breathalyzers Coming?

By James Baxter, NMA President

MADD and its bloated stepmother, NHTSA, have been pushing for mandated ignition interlock devices (IIDs), preferably in all vehicles, but they know from experience these things have to be done in an incremental fashion, or there could be severe public backlash and resistance. One can currently assume that the breathalyzer industry has been actively writing checks to “enhance public safety” through the legislated mandated use of these devices.

The first stage of the incremental process is to target “bad people,” that would be the two million people who receive DUIs, annually. The objective is to force the courts to require the installation in all cars driven by persons convicted of DUI. Obviously, this would be a bonanza for the companies that make and market IIDs. The country’s number one “early adopter,” California, jumped on this bandwagon in the late 1980’s. Subsequently, the CA state legislature had the foresight to insert a provision in the law that required an evaluation of the IID mandate. Here are some of those findings:

Although ordered by the courts to install IIDs, many DUI defendants did not do so, ostensibly because they could not afford to do so.

When comparing the DUI convicted drivers who actually drove vehicles with IIDs to DUI drivers who did not use IIDs, those using IIDs had significantly more crashes. (84 percent more)

First offenders with high BACs, .20 or higher, who were ordered to use IIDs had just as many subsequent DUIs and crashes as those first offenders who were not ordered to install IIDs.

However, the first offenders who actually had IIDs installed had far more crashes than those who did not.

If this measure is being considered for safety purposes, as is claimed by the proponents, why is the legislature considering a mandate that will substantially increase vehicle crashes?

The financial and collateral penalties, experienced by the average person convicted of DUI, ultimately constitute many thousands of dollars and lost educational and vocational opportunities. It hardly seems fair or rational to institute yet another penalty that does little more than benefit the Ignition Interlock Device industry, and body shops, while placing more burdens on hospital emergency rooms. That is, if the intent is to improve highway safety.

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• Tyranny Of The Minority: Why Bad Traffic Laws Get Passed
• Where Does The Money From A Speeding Ticket Go?
• Red-Light Cameras Do Not Reduce Right Angle Crashes

By James Baxter, NMA President

MADD’s current excuse for existing is to make DUI violations a felony, the most serious of criminal convictions. A felon, along with going to prison, loses the right to vote, the right to possess firearms, any professional licenses, scholarships, and many employment opportunities. Given that two or three drinks and a typically inaccurate BAC test will yield a DUI conviction, any normal, responsible person who drinks moderately has a good chance of becoming a felon, if MADD has its perverted way.

The standard incremental approach is to first attach the felon status to persons with multiple DUI convictions and then whittle the number of convictions down to two or even one where the felon status will be assigned. The elephant in the room that no one is mentioning is that once a person has a DUI conviction on their record it’s like having a big sign on the back of their car that says “stop me, I’m a good candidate for a DUI.” A second or third DUI conviction is much easier to acquire than is the first.

Combine .08 percent BAC laws with inherently inaccurate Breathalyzers and politicized enforcement and normal responsible individuals who drink in moderation will achieve the status of “drunk driver felon,” without ever reaching the point of meaningful impairment, or causing and accident. The prohibition movement is alive and well and residing in Texas.

• Vengeance, Bad Data Make For Terrible DUI/DWI Policy
• It’s Just A Decimal Point: The Dirty Secret Behind Breathalyzers
• Motorists Forced To Let Officers Draw Blood Samples At DUI Stops
• Breath-Alcohol Analysis: How Reliable Is It?
• A Blueprint For Reasonable Drunk Driving Laws

By James Baxter, NMA President

This editorial by James Baxter is a response to a five part series on drunk driving in Wisconsin that appeared in the Milwaukee Journal-Sentinel in October.

The Journel-Sentinel series on “excessive drinking,” primarily related to drunk driving, was motivated by “studies” that identified Wisconsin as the epicenter of drunken behavior and alcohol inspired havoc.

The authors created the illusion of neutrality while pounding home the message that beer, wine, and spirits, and their purveyors, were the leading cause of mayhem on the state’s highways. That the so-called studies have virtually no merit and evolve from the worst of all sources, self-reported behavior, didn’t cause any hesitation in parroting the ludicrous conclusions.

The premise, that Wisconsin has a huge highway safety problem, ranking it the worse in the nation, has one major flaw. It’s not true.  Real numbers, real facts, show that Wisconsin has traffic accident fatality rates that are lower than the national average and lower than many states that boast tougher DUI laws.

Wisconsin may not rank high in MADD’s book, but where the rubber hits the road the state has a solid record of highway safety improvement. (In 2006 Wisconsin’s fatality rate was 15 percent below the national average.)

MADD has developed a successful multi-million dollar business model that exploits the human desire for revenge, distorts data for propaganda purposes, and promotes intimidation to coerce uncooperative judges and other public officials.

MADD is supported in this process by the National Highway Traffic Safety Administration, NHTSA, which favors the use of hyperbole and misleading terminology to justify its actions and programs. (E.G. In 1995 NHTSA told Congress that repealing the national 55 MPH speed limit would cause 6400 additional fatalities. The 55 MPH limit was repealed, but the number of fatalities did not increase and the fatality rate has declined, continually, since that time.)

A good example of the collaboration between MADD and NHTSA is the creation of the deliberately deceptive phrase “alcohol related fatalities.” This includes any fatal accident where one of the people involved had a measurable amount of alcohol in their system. It doesn’t mean that person caused the accident, or that the alcohol was a factor in causing the accident. It just means one of the participants had evidence of alcohol in their system.

This is hardly remarkable when 60 to 70 percent of the adult population (perhaps higher in Wisconsin) consumes beer, wine, and or spirits and that alcohol can remain in their systems for several hours after consuming these beverages.

NHTSA issues a press release that says “Nationally, 13,000 lives were lost in alcohol related crashes.” Soon thereafter MADD picks up the drumbeat and proclaims far and wide that “drunk drivers killed 13,000 people.” MADD then predictably produces a family that has suffered a loss in a DUI incident and implies that they are representative of the typical “drunk driver” victim. The Journal-Sentinel series followed the same playbook.

Beyond the estimate that among all the people involved in fatal accidents, 13,000 had alcohol in their systems, none of this is remotely true.

In the vast majority of cases the only “victim” is the driver himself. A significant percentage of single vehicle, single person fatalities attributed to DUI are in fact suicides, not accidents. In other cases, the at-fault driver was not the person with measurable alcohol present and in yet others, alcohol was not a causative factor.

MADD and the political class persist in stigmatizing the sale and consumption of beer, wine and spirits, in general as well as connected to driving. To the extent that this process is profitable (e.g. donations, sin taxes, fines, fees, surcharges, etc.), it may be rational, albeit unethical.

However, when they move to promoting road blocks for the purpose of intimidation and harassment of the general population, or classifying someone as a felon because they had three drinks and drove a car, or mandating ignition interlock devices, proven to cause more accidents than they prevent, their actions become irrational and corrosive to our welfare and values.

Yes, the social and cultural customs of Wisconsin include the consumption of beer, wine, and spirits and the frequenting of taverns, restaurants, social and sporting events where these beverages are served. As even the Journal-Sentinel article gave passing mention, this is largely done in moderation.

And, as official highway statistics show, Wisconsin’s highways are safer than the national average for all states. This is not to say that more cannot be done to reduce impaired driving, of all kinds. But, revenge inspired penalties, intrusive enforcement, and counter-productive mandates are not the direction we should be taking.

• MADD Pushes To Make DUI Violations A Felony
• Drinking Improves Highway Safety (Apparently)
• What Everyone Should Know About The Drunk Driving Problem
• California Supreme Court: Breathalyzer Results Can Be Challenged
• Traffic Safety Hysteria: How The Media Misleads You With Statistics

The NMA supports drinking and driving regulations based on reasonable standards that differentiate between responsible, reasonable behavior and reckless, dangerous behavior.

The NMA does not support “zero tolerance” concepts, nor does it endorse unconstitutional enforcement and judicial procedures that violate motorists’ rights.

Basic Tenets

1. We believe that penalties for DUI/DWI should be related to the degree of risk involved, and that these penalties be equated with penalties for equal-risk violations of other traffic safety laws.
2. We support those legislative and enforcement initiatives that are effective in achieving stated goals of deterrence and removal of impaired drivers. We do not support initiatives based on revenge, political expedience, or emotional hyperbole.
3. We believe that all Americans should enjoy the same Constitutional rights and privileges. Legislative or enforcement initiatives denying these rights and privileges to motorists violate this uniform application of Constitutional standards.
4. We believe in basing laws and penalties on actual evidence of impairment whenever possible. Blood alcohol content should only be used as prima facie evidence of impairment, and there should be flexibility in laws that base penalties on blood alcohol content.

Specific Positions

1. We oppose drunk-driving roadblocks on the grounds that they violate protection from warrantless search and seizure, and fail to meet probable cause standards. They have not been shown to be effective at deterring impaired driving.
2. DWI penalties based on blood alcohol counts should be graduated to reflect the potential severity of impairment. The more severe penalties should be phased in at a BAC of .15 where impairment begins to directly correlate with accident involvement. Lower penalties should be adopted for less severe DWI violations.
3. We support increased penalties for repeat offenders, but maintain that rehabilitation be the primary goal in all but the most severe cases.
4. Any mandated BAC test must be based on clear reasonable suspicion of impairment, not an unrelated traffic violation.
5. Breathalyzer tests should be used for screening purposes only. They should have no standing as actual evidence of Blood Alcohol Content. However, we support that the driver always have the right to a blood test and be notified of that right should he wish to dispute the results of the breath test.
6. We are concerned with deterring impaired driving, not with regulating how a driver might become impaired. A driver is equally responsible regardless of where the drinking takes place be it at home, in a vehicle, or at a commercial establishment.
7. A “technically” impaired driver should not automatically be more heavily penalized if they are involved in an accident. The penalties should be based on the severity of the accident and the extent to which the impaired driver was at fault.
8. We oppose so-called “Administrative License Suspensions” since they are not an effective deterrent and violate the right to due process.
9. We support the detainment of any driver arrested on an impaired driving charge until sufficient time has passed to allow the individual to safely drive, or for other transportation arrangements to be made.
10. We support the right to a jury trial for all accused traffic violators, particularly defendants accused of severe offenses for which long license suspension or jail time could be imposed.
11. We oppose measures that revoke or withhold a driver’s license that do not directly relate to driving. As related to drinking laws, we are opposed to license suspension for non-driving related violations.
12. We do not support age-based BAC standards (e.g., “zero tolerance”) for persons under 21 years of age.
13. We do not support a blood alcohol content standard of .08% for non-rebuttable conviction of DWI.

Periodically, a member will write and express concern over the NMA’s support of “drunk drivers.” This is usually motivated by our opposition to some particular anti-DWI initiative.

The NMA does not support, encourage, or condone drunk driving.

We do support constructive and effective solutions to the drunk driving problem that are fair, equitable, and respective of fundamental rights.

For more information on DUI/DWI issue, visit the DUI/DWI section of our website.

Image Credit

• California Supreme Court: Breathalyzer Results Can Be Challenged
• What Everyone Should Know About The Drunk Driving Problem
• Legislator Prosecuted Under New DUI Law That He Helped Pass
• Watch Your Wallet When Driving Through These 10 States
• Breath-Alcohol Analysis: How Reliable Is It?

If you’re not a convicted drunk driver, should you still be required to have an in-car breathalyzer fitted (at your expense, ‘natch) to your next new vehicle?

Apparently, some automakers — including GM and Toyota — think so. They and a few others are working together under the auspices of something called the Driver Alcohol Detection System for Safety, which is a $10 million federal “research program” that is trying to develop just such technology for mass introduction a few years from now.

At the moment, the only people who have to deal with (and pay for) in-car Breathalyzers are convicted drunks; the devices are basically ignition locks that prevent the vehicle’s engine from being started until the would-be driver blows into the tube and the system determines he’s not liquored up.

But by 2012 or so, in-car breath sniffers could be standard equipment in every new vehicle sold, force-fed to you by the tag team of Washington, Detroit and, of course, the ever-busy Mothers Against Drunk Driving (MADD).

No conviction necessary.

Advocates say the technology under development would be “less intrusive.” Instead of making the driver blow into a little tube like they make you do at those roadside “sobriety checkpoints,” a system of passive alcohol sensors would be fitted to the car that could take a Blood Alcohol Content (BAC) reading via a person’s skin — as when your hand touches the shifter or steering wheel. This “quiet” approach is supposed to make us feel better about being pre-convicted and treated like known and duly processed irresponsible drunks every single time we get behind the wheel of a car.

It doesn’t work for me.

I dislike drunk drivers as much as Mothers Against Drunk Driving (is anyone actually for drunk driving)? But I certainly do object to policies and regulations that impose cost and hassle and arguably, petit tyranny, on people who have done absolutely nothing to warrant it.

This isn’t about nannyism so much as it is about upending a few basic bedrock Western ideas about criminal justice, rights and responsibilities. Chief among these being that each of us gets treated as a specific individual.

If we do something wrong, we get specifically held accountable for it;  the guy next door who had nothing to do with it isn’t dragged along for the ride. But that’s just what is happening here — indeed, has already happened — from those so-called “sobriety checkpoints” (which mostly “check”  perfectly sober drivers) to the growing kudzu of “primary enforcement” seat belts laws that pester (and ticket) people for not wearing a seat belt, an action that may not be especially smart on an individual level but which has very little to do with the safety or well-being of others.

What’s even worse than these growing harassments, however, is how few object to them on principle.

Perhaps it’s because of the continuous dumbing-down of the populace, which knows all about Lindsay Lohan’s latest bender and who’s the latest finalist on American Idol but no longer understands that the ends don’t justify the means — and that down that road lies much worse than henpecky tickets and having to pay a few more bucks for your next new car as a result of some government mandate.

People used to get that; today, most don’t seem to. It’s the only way to explain the tsunami-like effectiveness of the word, “safety” — which doesn’t have to be specifically defined, quantified, subjected to cost-benefit analysis or throttled back by the once-superior claim of the individual’s “personal bubble of authority” — where he or she formerly reigned supreme, free of the suffocating and endless edicts of others who claim their evaluation of a perceived risk trumps your personal right to choose.

Just say “safety” (and for added emphasis, include “our children”) and no objection can be sustained.

This latest bit of ugliness burbling up from the stinkpot of government-corporate do-gooderism is merely a symptom of the underlying canker that is our ignorance — and acquiescence.

Earlier generations of Americans would have said, “Hold on a minute. I haven’t been convicted of driving drunk; hell, I’ve never even been suspected of it. Why in the world should I be required to buy an alcohol sniffer to check me out before I drive?” They would have insisted on tough punishment for the specific dimwit who got behind the wheel of a car impaired by booze. But they would have insisted, with equal toughness, that everyone else be left the hell alone to go about their business in peace.

Today, however, the siren song of saaaaaaaaafety is like a secular version of the prayer call in Muslim countries. When people hear it, they automatically fall down on their knees en masse and begin to worship.

God may be great — but “safety” is rapidly gaining ground on him.

Comments?
www.ericpetersautos.com

Image Credit

• California Supreme Court: Breathalyzer Results Can Be Challenged
• Vengeance, Bad Data Make For Terrible DUI/DWI Policy
• A Blueprint For Reasonable Drunk Driving Laws
• It’s Just A Decimal Point: The Dirty Secret Behind Breathalyzers
• What Everyone Should Know About The Drunk Driving Problem

A new federal study from the Substance Abuse and Mental Health Services Administration (part of the US Dept. of Health and Human services) just confirmed that states with the highest levels of self-reported drinking and driving also have the safest highways.

The State of Wisconsin was the overall winner with more than 25 percent of its drivers reporting that in the previous year they had drank an alcoholic beverage before (or perhaps while) driving. This was more than twice the national rate!

Clearly, this is compelling evidence that action is needed, but not in Wisconsin.

The “facts” from this federally sponsored survey, when correlated with federally produced highway safety data, suggest that many more states should follow Wisconsin’s lead and increase their percentages of drinking drivers.

According to the most recently published federal data Wisconsin’s highway fatality rate (fatalities per 100 million vehicle miles traveled) is significantly lower than the national average (1.22 vs. 1.41 in 2006).

The same widely published press release pointed out that Utah with its anti-alcohol Mormon population had the lowest percentage of self-confessed drinking drivers.

In the interest of full disclosure it should be pointed out that the highway fatality rate in Utah is lower than is Wisconsin’s, but not nearly as low as Minnesota’s, another drinking and driving haven. Could it be that those Lutherans that charm Garrison Keiler are just better drivers than the Mormons?

OK, enough satire.

This so-called survey is a glaring example of government propaganda, sloppy and lazy reporting, and misinformation on a grand scale.

Let’s try a little dose of reality:

First, over a year’s time the percentage of Wisconsin drivers that drink and drive, at least once, is nowhere near 25 percent. The real percentage has to be at least 50 percent and probably nearer 75 percent.

A drink with dinner, a wedding reception, holiday gatherings, church picnics, softball leagues, retirement functions, euchre tournaments, bowling, community festivals, and a myriad of other occasions may involve having a drink, or more, and driving home. And, contrary to the characterizations blathered in the mindless media revelations, these are not automatically episodes of “drunk driving.”

There is no doubt that the ethnic make-up of Wisconsin and its neighboring states encourages and condones the consumption of beverages containing alcohol. That’s one of the reasons Wisconsin residents “self report” drinking and driving at higher percentages than other states.

However, they are not immune to the neo-prohibitionist jihad and therefore they are not as candid as they might or could be. The under-reporting in other states is undoubtedly equal to or greater than that in Wisconsin.

Here’s what you can take away from this federal “survey” and its subsequent circulation: Most self-reported behavior is disingenuous. Drinking and driving are NOT synonymous with drunk driving. Moderate drinking and driving are not synonymous with high accident or fatality rates. And, all governments produce self-serving propaganda, and an unthinking press prints and circulates that propaganda. End of story.

• Vengeance, Bad Data Make For Terrible DUI/DWI Policy
• Reinstating "55," Are They Crazy?!
• What Everyone Should Know About The Drunk Driving Problem
• Traffic Safety Hysteria: How The Media Misleads You With Statistics
• The Effect Of A National Speed Limit On Traffic Safety & Fuel Prices

In a 1983 law review article, Stephen G. Thompson observed the following:

“Modern criminal justice is premised upon the requirement that a criminal defendant be proved guilty beyond a reasonable doubt before punishment can be meted out. This standard of proof is severe; its severity is based upon a collective societal judgment that the risk of error be borne by the state. As fundamental and unquestionable as this principle may seem, it is frequently tested when the interests of society appear urgent, immediate, and identifiable. In these instances, society often creates policies and systems which threaten the presumption of innocence.”

Breath testing is a good example of the use of scientific evidence that routinely deprives suspects and defendants of the presumption of innocence and results in wrongful convictions as well as unwarranted guilty pleas.

The reason for this is that breath testing as now employed does not accurately reflect the true or actual value of alcohol concentration in the venous blood or even in the breath of a human subject.

SCIENTIFIC PROBLEMS

Current scientific research, published in respected peer-reviewed journals, now shows that results from breath alcohol analysis or breath testing are not sufficiently reliable for use in our courts. This represents a huge problem because breath testing has been used widely for this purpose for over 50 years and continues in widespread use on a daily basis.

What has now been demonstrated is that three important aspects of breath testing are faulty or even downright wrong:

1. The very basis for breath testing in humans is the theory that ethyl alcohol (ethanol) in the blood is in equilibrium with the alveolar air in the lungs and that by measuring the concentration of ethanol in the end-expired air sampled by a breath machine, the amount of ethanol in the blood or breath can be reliably determined. Recent work by Michael Hlastala at the University of Washington Medical School in Seattle has shown that there is no such equilibrium and that breath testing therefore cannot work.
2. Evidential breath testing has a very large margin of error, a minimum of +46%, meaning that for a given individual the breath test result can be anywhere from 0 to 46% higher than the actual amount of alcohol in the blood. This is the minimum amount of error that is indicated by the most recent scientific research. The actual amount could well be far greater.
3. It has been recently shown that the “calibration” method used to ensure reliable performance of evidential breath machines does not work. The method used to “calibrate” these machines on a regular basis deals with only a fraction of the total error or uncertainty involved in a breath test result for a given individual; it simply ignores the major sources of error involved in results from evidential breath machines, e.g. error that occurs from assuming that the blood/breath ratio is 2100:1. Consequently, the actual amount of error in a breath test result for a given individual is unknown.

LEGAL PROBLEMS

Despite the fundamental scientific shortcomings of breath testing as used in criminal and civil cases, our courts continue to consider such evidence as an acceptable indicator of the inability to drive safely.

One issue that should be taken to the U.S. Supreme Court involves the destruction of evidence when breath testing is are given.

When a suspect is given a breath test, the breath sample is discarded, even though the technology to save the breath sample has been readily available for many years. This issue was taken to the U.S. Supreme Court in a California case called Trombetta many years ago (1984) and the court ruled that breath test samples need not be saved.

It is time to revisit this issue because research done in the 1990s makes it clear that breath testing is far less reliable than blood testing, and far less reliable than the Trombetta court was led to believe, yet it is blood samples that are retained by forensic laboratories and breath samples are discarded.

There are at least 100 volatile compounds (other than ethyl alcohol) that can cause false readings on a breath test device.

This is a compelling reason why the breath sample should be saved for reanalysis. A simple gas chromatography analysis can determine if any other compounds are contributing to, or are responsible for the entire reading. The prosecution must provide an unequivocal identification of ethyl alcohol and show that it is responsible for the entire reading produced by the breath test device. Without this, the evidence would appear to be insufficient for a reasonable juror to conclude guilt beyond a reasonable doubt.

Because a criminal charge is involved, regulation should be at least as strict as it is for medical or clinical laboratories for which 95% confidence limits are used to meet a standard of reasonable medical certainty.

Breath testing is actually a clinical chemistry analysis because alcohol concentration is being measured in a human body fluid (breath). Consequently, when used for legal purposes in criminal cases, regulations should require at least 95% confidence limits (some have argued that 99% confidence limits are appropriate to meet a standard of beyond a reasonable doubt).

Consider a political poll in which one candidate gets 49% of the vote and the other 51% of the vote, and the margin of error in the poll is +/- 4%. Since the result is within the margin of error, the race is too close to call. Confidence limits are part of how the margin of error is determined.

If one wants to be 95% certain that a subject’s blood alcohol concentration or breath alcohol concentration are not being over-stated by the breath machine result, an appropriate correction factor must be used.

For example, most statutes now criminalize driving with a BAC of 0.08%, and to be 95% certain that the 0.08% limit is in fact exceeded, a person would have to have a test result 40% greater than 0.08%, which is 0.112%. For 99% confidence limits the result must be 46% greater than 0.08%, or 0.117%.

At best, however, statutes and courts allow only +/- 0.01% for the margin of error in breath test results.

KNOW YOUR RIGHTS

Drivers need to know what their rights are in order to minimize the chances of wrongful arrest and conviction.

A driver has the right to politely refuse to answer any questions about drinking.

It is likely that the officer will persist in an attempt to get the driver to admit to alcohol consumption to make their case stronger. There is, however, little chance that a driver’s explanations will keep an arrest from happening, so it is better to remain silent about anything having to do with alcohol consumption.

A few things to keep in mind about field sobriety tests:

• If there are factors in play that compromise field sobriety test performance, such as poor balance or nystagmus due to injuries or prescription drugs the officer must be told about them in order to include them in his report.
• Hyperventilation prior to the breath test will significantly lower the test result.
• If the driver has had exposure to paints or solvents or is diabetic or has asthma, the officer must be asked to include these in his report as well.
• Refusal of a blood or breath test can be helpful in some jurisdictions and harmful in others for avoiding conviction at trial, but usually results in suspension of the suspect’s driver’s license.

CONCLUSIONS

The current status of breath testing is, as it has been for some 50 years, about the same as the status of DNA Fingerprinting was when if first began to be used in our courts. Forensic scientists adopted this methodology and began presenting it in courts as powerful evidence to identify suspects who left their DNA at the crime scene. At this time, like breath testing now, there was virtually no oversight or outside regulation of DNA Laboratories. Like breath testing, outlandish claims of accuracy and probability of a match were commonplace by those in the forensic science community, even under oath.

As time passed, very capable and informed defense attorneys were able to raise enough doubt about the claims that were being made that evaluation of the method by the National Academy of Sciences (NAS) was initiated. As a result, most of the scientifically unacceptable aspects of the procedures and methods used by DNA Laboratories were corrected, based on the recommendations of NAS committee members.

This is precisely what must be done with breath testing.

NAS consists of members of the main-stream scientific community, not forensic scientists. Indeed, forensic science is not one of the disciplines even represented in the National Academy of Sciences. NAS must be enlisted to evaluate the scientific merit of breath testing methods and procedures. If this is not done, the 50 year history indicates that neither the forensic science community nor our courts will solve the problem.

An immediate fix for the problems with breath testing is to inform jurors and judges that there are large unknown uncertainties in breath test results, and this must be factored into decisions of innocence or guilt of drunk driving. Long term solutions await development of direct, non-invasive blood alcohol tests.

Breath testing is now and will always be too unreliable to use for legal purposes, and when evaluated by NAS, this will eventually be shown to be true.

This information is excerpted from the forth-coming book: CSI/Forensic Fraud Cover-up by John Kelly who can be reached at: kjohn39679@aol.com.

This article has been adapted for use in this blog. You can read the full, unabridged article here: Breath Alcohol Analysis.

• California Supreme Court: Breathalyzer Results Can Be Challenged
• It’s Just A Decimal Point: The Dirty Secret Behind Breathalyzers
• Motorists Forced To Let Officers Draw Blood Samples At DUI Stops
• A Blueprint For Reasonable Drunk Driving Laws
• Mandatory In-Car Breathalyzers Coming?

The truth is closer to 10% of all highway fatalities are caused by drunk drivers. This certainly isn’t good, but let’s at least put the issue in perspective.

Our government and certain self serving "non-profit" organizations have exaggerated this problem beyond any sense of reality to promote an agenda that eliminates basic individual rights, undermines our system of due process and heaps onerous penalties on people who have not injured anyone and may not have met any reasonable standard of "impairment."

So where do the numbers that we hear being repeated time after time come from?

The "government speak" term is "alcohol-related." This term was created to deliberately mislead and confuse the general public about the magnitude of the drunk-driving problem.

When you hear some "expert" state that 40 or 50 percent of all fatal accidents are "alcohol-related," the intention is to make you believe that drunk drivers are responsible for causing all these fatalities. This is pure propaganda.

The federal government defines an alcohol-related fatal traffic accident as an accident where someone died and a person involved in the accident had some measurable amount of alcohol in his or her system. For example:

• A sober driver hits a pedestrian who has been drinking, even modestly. That’s considered an alcohol-related accident.
• A sober driver rear-ends a driver that has had something to drink. That’s considered an alcohol-related accident.
• A driver has a single drink and is involved in a fatal accident that he did not cause. That’s considered an alcohol-related accident.

Do these sound like "drunk-driver-caused" accidents to you? That’s what the government and the anti-drinking organizations would like you to believe.

Unfortunately, the media often parrots back the "alcohol-related" statistics to the general public which inevitably prompts people to push for more and more draconian penalties.

The common response when this misinformation is pointed out is for people to say, "Well, just don’t drink and drive and you won’t have to worry about it."  This is disingenuous at best.  The truth is that these laws will certainly affect many drivers who never even had a sip of alcohol. 

The constant stream of misinformation over the years has created a hysteria about drunk driving.  This hysteria has made normally rational people line up to give away their constitutional rights.  The sad thing is that these rights are being given up for nothing.  They’re being given up for the illusion of safety.

It’s worth noting that the NMA does not support drunk driving.  No rational organization does.

• Vengeance, Bad Data Make For Terrible DUI/DWI Policy
• A Blueprint For Reasonable Drunk Driving Laws
• Drinking Improves Highway Safety (Apparently)
• Traffic Safety Hysteria: How The Media Misleads You With Statistics
• Have You Been Misled By A Common Statistical Error?